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Accident Compensation Cases

Barnett v Accident Rehabilitation and Compensation Insurance Corporation (HC, 26/10/95)

Judgment Text

The appellant obtained leave from the Accident Compensation Appeal Authority (“the Authority”) on 6 June 1995 to appeal to this Court against the decision of the Authority delivered on 26 October 1994. There has been a long history of applications to the respondent Corporation by the appellant; he had originally claimed accident compensation on 25 June 1989 on the basis that he had suffered financial and other loss through having been treated for 20 years with inappropriate drugs which caused a loss of mental powers, psychiatric illness, sleepiness, and a condition known as tardive dyskinesia. 
The respondent initially refused compensation on the grounds of medical misadventure, the review officer noting that the Medical Council had found no negligence on behalf of the administering physician. 
On 8 July 1991, the appellant's then solicitors appealed to the Authority; this appeal was withdrawn in September 1992 because the respondent considered that the doctors involved with the appellant's treatment should have been aware that Benzodiazepine drugs could cause drug dependency, a fact allegedly recorded and documented to the medical profession prior to 1980. The respondent agreed therefore to change the basis of the appellant's claim. Ultimately, on 17 August 1993, the respondent considered that the effective date of the appellant's medical misadventure was 10 July 1979. 
There was a review of that decision before a Hearing Officer at which the appellant appeared for himself. The appellant was unsuccessful. The appellant then appealed to the Authority (the late Mr B H Blackwood) stating in his detailed submissions which he again presented in person that the issue before the Authority was: “When ought a doctor in New Zealand to have known of the harmful effects of Benzodiazepines. Is it pre-1976? Is it 1974? Or is it the date claimed by the ACC?” In his decision, Mr Blackwood found that, in fixing the date of the medical misadventure as at 10 July 1979, the Corporation had acted generously towards the appellant. 
Subsequently the appellant obtained the services of counsel, Ms Bedford, who appeared before another Authority, Mr P J Cartwright, who granted leave to appeal to this Court under s 111 of the 1982 Act; the basis of leave was that the public interest required the matter to be decided by this Court. The Authority noted that: “there were growing number of claims being made by people who had developed dependence upon Benzodiazepines. There are numerous cases coming before the Corporation at review and before the Appeal Authority as the result of those reviews, concerning claims for over-prescription of Benzodiazepines.” 
Mr Cartwright noted that in some of the cases, the claimant did not have a medical history; that some years into the drug use the claimant had to seek help for psychiatric problems not in evidence before the course of prescriptions commenced. He noted also that claimants often represented themselves, as did this particular appellant because by the time dependency is recognised, the claimant has usually lost employment and often marriage and relationships and cannot afford legal representation. 
Counsel also informed Mr Cartwright that to her knowledge there were a number of similar cases in the system. The Authority accepted counsel's argument and decided, against the respondent's opposition, that it was essential, if justice is to be done for all claimants, for a standard test to be developed and applied. 
At the hearing before me, counsel for the Corporation accepted Mr Cartwright's enunciation of the issues as follows: 
When should a reasonable and prudent medical practitioner have known, when prescribing Benzodiazepines, that dependence was an adverse possible reaction? 
Are there any particular qualities of the medical practitioner concerned, such as expertise or experience, which would justify an alternative time-frame for the imputing of the required state of knowledge? 
Are there any particular qualities of the individual concerned and of his/her reaction to the challenged treatment, that would justify an alternative time-frame for the imputing of the required state of knowledge? 
Is there any extrinsic evidence that would justify a finding that a particular medical practitioner did know of dependence as a possible adverse reaction at a specific time, the general state of medical knowledge notwithstanding? 
When should a reasonable and prudent medical practitioner who routinely prescribed Benzodiazepines to a patient over a prolonged period of time and then in increasing dosages, have been aware of dependence as a possible adverse reaction? 
Although the respondent will argue at the substantive hearing that the shorter one-sentence formulation of the issues adopted by Mr Blackwood was more appropriate, nevertheless counsel acknowledged that the issues (a) to (e) as above should be traversed. 
The appellant now wishes to call under r 718(4) of the High Court Rules further evidence from a Dr Cliff, a consultant psychiatrist. Dr Cliff, in a lengthy report, states his view that the Appeal Authority was wrong in fixing 1979 as the date at which medical practitioners should have known about the adverse reaction of Benzodiazepines. He fixed the date at 1974. Dr Cliff in his report goes on to detail the appellant's medical treatment, not simply on those occasions when he was prescribed Benzodiazepines; he also reviews the whole of the appellant's medical history, including the prescription of other drugs such as amphetamines and other psychotropic drugs. 
Dr Cliff considers that whilst Benzodiazepine dependence was a central plank in the appellant's misfortune, this dependence was greatly aggravated by the unwise and/or inappropriate use of other drugs resulting in a general state of toxicity which rendered the appellant incapable of employment. Dr Cliff notes that there are people habituated to or dependent on various psychotropic drugs who yet function very well indeed because they are in equilibrium with their drugs; trouble occurs when they are not only dependent but also intoxicated, or alternatively when they suffer ill effect through a withdrawal reaction when the dependence is broken. 
Counsel for the respondent objects to the filing of fresh evidence but particularly to the sort of evidence I have just referred to which, in counsel's submission, makes this a rather different case from the one before the Authority which alone can be the subject of an appeal to this Court. 
Counsel for the appellant submits that in the formulated issues, the Court has to look at the particular qualities of the individual concerned and his or her reaction to the challenged treatment; that it would be completely unreal to ignore the fact that Benzodiazepine dependence may or may not have been exacerbated by the other drug regime which had been prescribed for the appellant. 
I have some sympathy with the submissions of the respondent; it is clear that the sole issue on which leave to appeal to this Court was granted by Mr Cartwright was on the issue of the date on which a prudent medical practitioner would have known about the possible adverse reactions to prescribing Benzodiazepines. However, I do not think it right at this stage to eliminate the contested evidence; it will be for the Judge hearing the appeal to assess this evidence, recognising the limits laid down by the Act for appeals of this nature. 
Mr Sissons raised the point that the respondent might be able, under s 100 of the 1982 Act, to reopen the appellant's case and take a different view of his claim for medical misadventure; namely, that the appellant prior to 1979 had been inappropriately prescribed psychotropic drugs in conjunction with the Benzodiazepine drugs. However, such an investigation by the respondent might take some time. 
It seems appropriate, to keep the momentum going, that the respondent should be entitled to file evidence in rebuttal to Dr Cliff's evidence, if such evidence exists. I was advised by counsel that there is a report from a Professor Silverstone concerning this topic and that he is available to make an affidavit on this point but not for some 2 months. 
I have so far ignored the criteria of allowing any additional evidence to come in on appeal. I consider that this is one of those rare occasions where I should give leave. I had occasion recently in Power NZ Ltd v Mercury Energy Ltd [1996] 1 NZLR 106; (1995) 6 TCLR 628 to review the occasions when the Court would give leave to call further evidence on an appeal under r 718. I do not wish to repeat what I said there but make the following points which seem appropriate to this case. 
First, an application to hear additional evidence is more likely to succeed than an application for rehearing of evidence; there is no dispute as to the adequacy of the record. In this present case, there was no evidence called before Mr Blackwood; the appellant produced a number of medical reports and articles; there is no question of credibility. 
Secondly, although the normal limitations on the introduction of fresh evidence on appeal still apply, ie evidence is not normally admitted, which by the exercise of reasonable diligence the parties seeking to produce it could have been produced; that the new evidence should be of sufficient materiality and cogency as to be likely to have an important influence on the result. The discretion is nevertheless unfettered. I adopt the dictum of Wylie J in NZ Co-operative Dairy Co Ltd v Commerce Commission (1991) 3 PRNZ 262, 270. 
In my view, [it is also relevant that] this appellant was unable to obtain legal aid for his appearance before the Authority; [and] that the Authority considered his case a matter of considerable public interest bearing in mind the other cases pending. Justice requires me to grant leave to file the fresh evidence. 
However, the fact that I am allowing Dr Cliff's report to be used as evidence does not mean that I accept all of his evidence as necessarily relevant on the hearing of the appeal, particularly, his evidence concerning the effect on the appellant of drugs other than Benzodiazepines either on their own or in conjunction with Benzodiazepines. 
I think the appropriate order is to allow the Corporation until 20 January 1996 to file any affidavits in reply. I am assuming that Dr Cliff should file a brief affidavit exhibiting his report and confirming it. The appeal should then come before me for another conference as soon as possible after 1 February 1996. At this conference, I suggest that all the options should be addressed. It may be that the Corporation, having received expert advice on Dr Cliff's report from Professor Silverstone and others, may be in a position to revisit the appellant's claim in terms of s 100. It may be that the appropriate course for me would be to remit the matter back to the Authority for a complete rehearing in the light of the experts' reports. The Authority rather than this Court is the proper forum for resolution of disputed matters of fact including expert information; it may be that the appeal should proceed, in which case an urgent fixture would be granted after that conference. Counsel should be ready to consider all the alternatives. 
One matter which I note is that the Appeal Authority has power to sit with expert assessors. This might have been an appropriate occasion for that step to have been taken. 
One final matter; counsel informs me the appellant's application for legal aid is still pending. In my view, this appeal involves a matter of public importance. If the appellant qualifies for legal aid under the financial regulations in that regard (as to which I have no knowledge), then this is a very clear case for his being granted legal aid for the appeal to this Court and all interlocutory matters, including possible remission to the Authority. 
The question of costs of today's appearance is reserved. 

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